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Rebar Kelly achieved a constructive victory by contributing 1% of the total settlement for our Civil Engineer client. Plaintiff brought suit, alleging that he was walking from the parking lot to the entrance of a commercial building and, as he took a step onto the walkway, he mis-stepped due to a significant deviation in height between adjoining portions of the walkway leading to the front doors. Plaintiff suffered quadricep tears bilaterally. He had the tears surgically repaired, but he never fully recovered, leading to a significant lost earnings claim.
Counsel for the commercial building owner brought a joinder action against our client, alleging that any defects in the sidewalk were the result of our client’s negligent planning and design. We argued the as built design was a material deviation from our client’s design.
Regarding the joinder claim, Plaintiff claimed that the fall resulted from a significant deviation in height between adjoining portions of the walkway leading to the front doors. Our client, however, maintained that the walkway’s steps were not constructed in the manner that was provided in the plans, relieving our client from liability to the building owner.
In City of Wilkes-Barre v. Kaminski Bros., 804 A.2d 89, 93 (Pa. Commw. Ct. 2002) the Court held “If the record provides any basis for finding the plaintiff (here joining defendant) primarily negligent, it will defeat indemnification.” citing Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951).
At mediation, we aggressively argued that in applying the reasoning of the Pennsylvania Supreme Court in Builders Supply Co. v. McCabe, and the rationale in City of Wilkes-Barre, the record provides a strong basis for finding the building owner primarily negligent in failing to follow the Civil Engineers plan for two steps. In constructing only one step with a greater height deviation, the building owner was primarily negligent, thus disallowing indemnification under Pennsylvania law.
We stood firm in our defense. The building owner paid the bulk of the settlement. We made a contribution of 1% to have the insured included in the release. Our research of law and defense strategy planning provided a substantial savings to our client in legal fees and settlement costs.
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